Patent Strategies in the Open Source World

Software engineers in Silicon Valley have long championed open source culture and the movement has gained significant momentum in recent years. Open source software competes successfully with traditional software and enjoys significant market adoption. Typically protected by licenses that allow free use, modification and sharing, open source software development involves extensive distributed collaboration. Software developers and testers volunteer their time to write code and fix bugs. Contributors collaborate through code repositories such as GitHub, which now has three million registered users.

No longer limited to the United States, the open source movement now has users and contributors across the globe. The European Commission estimates that the European economy has saved approximately 450 billion dollars by using open source software. In India, the government distributed millions of CDs containing open source software translated into regional languages. A large number of government agencies in Europe and Asia use OpenOffice, a free and open office software suite.

With popular products such as the Firefox browser and the Thunderbird email client, Mozilla is the ideal case study in open source software development. Even with around six hundred full-time employees, volunteers are responsible for an estimated 40% of the company’s work. Does Mozilla’s open source philosophy mean that they do not have any patents? Not quite. Mozilla general counsel, Harvey Anderson, explains that the company recently made an exception to file four patent applications. Anderson maintains that Mozilla wants these “protocols, techniques, and designs to stay open and royalty-free.” Mozilla assures that the patents will only be used defensively.

Red Hat, another player in the open source market, is more reluctant to give up its patent security blanket. The self-described leading provider of open source solutions has an extensive patent portfolio. In its patent policy, Red Hat falls short of declaring that it will adopt a strictly defensive posture across the breadth of their portfolio. As a company that competes with traditional software giants like IBM, Oracle and Microsoft, Red Hat is perhaps justified in assuming a more aggressive patent strategy. Red Hat’s patent portfolio serves a two-fold purpose, defending the company against frivolous lawsuits while simultaneously protecting open source. It is important to remember that apart from their public stance against patent lawsuits, there isn’t much stopping Red Hat from going on the offensive with their portfolio.

The contrasting patent philosophies adopted by Mozilla and Red Hat reflect the starkly different positions they occupy in the software market. In contrast with Mozilla, Red Hat is a multinational company with a number of large enterprise clients. Mozilla caters to end users who have the luxury to choose their browser or email client based on the parent company’s principles. On the other hand, Red Hat relies on clientele that care more about their enterprise software, with the company’s open source values being only an added bonus. Red Hat’s annual revenue currently exceeds a billion dollars, whereas Mozilla still relies on donations. Unlike Mozilla, Red Hat has also been the target of patent trolls in the recent past.

Because they restrict open distribution, use and modification of software code, patents are generally thought to be incongruous with open source culture. Accordingly, it is interesting to see proponents of the movement now adding patents to their arsenal in an attempt to ensure that that their inventions remain available to the open source community. IBM’s donation of five hundred patents for use in open source software is an example of this approach. Considering Mozilla’s reluctant admission that patents are a necessary evil in today’s software market and looking at Red Hat’s sophisticated patent strategy, it is likely that patents will feature more prominently in the future open source landscape.

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About: Amisha Manek

Amisha Manek is a first year law student at UCLA School of Law, with an interest in patent law and telecommunications law. Prior to joining law school, she worked as a consultant with the Telecommunications, Media and Entertainment practice at Capgemini
North America. Amisha has a graduate degree in Electrical and Computer Engineering from Georgia Tech.